Volume 1 — Gill & Johnson's Maryland Reports

<p>It is the unquestionable and exclusive right of the Jury to decide on facts, of the existence of which, contradictory testimony is adduced.</p> <p>The owner of a ship and cargo has the uncontrolled power of breaking up, or changing the voyage.</p> <p>The principles which should govern such cases, in the absence of all commercial usage on the subject, and by which the effect of its action on the contract of the ship master or supercargo with the ship owner, is to he determined, are</p> <p>1st. If by the exercise of this privilege a special injury is done to either, the ship owner must bear the loss, and make a reasonable indemnity.</p> <p>2. If by the change of the voyage, the captain or surpercargo be necessarily discharged from the performance of all the duties, for which a remuneration has been stipulated, his claim to such remuneration is thereby extinguished.</p> <p>3. If a part of the duties have been executed, then such a proportion of the stipulated compensation should he allowed, as appears just on comparing the services rendered, with those which remain unperformed. For the interpolated part of the voyage, the usual compensation must be paid. The parties should be placed, as nearly as may be, in the same condition in which they would have stood, had a previous contract for the voyage as changed, been entered into between them. To all the customary emoluments of a captain, or supercargo, on such a voyage, are those officers respectively entitled.</p> <p>A ship master, who was also the supercargo, was directed to proceed with his ship to several ports; his compensation, in addition to monthly wages, was a sum' certain, with a privilege of bringing home a specified quantity of merchandize from one of such ports. After a part performance of the voyage; the ship owner changed its direction,, and shoidened it; so that the port at which the privilege might have been exercised, was not visited by the ship; before the termination of the voyage, the ship master died'. Held that the privilege was so inseparably connected with the vessel’s destination to the particular port, at which it was to have been .exercised, that upon its ceasing to he one of the termini of the voyage, the privilege of necessity expired, and that the sum certain stipulated to he paid the captain' had relation to the voyage as originally contemplated, and was therefore subject to abatement, in the discretion of the Jury. First, for the alteration of the voyage, if they believed, that the ship master’s labour and responsibility were thereby lightened and, secondly, for that portion of his contemplated services, which were lost by his death.</p> <p>The misconduct of a captain or supercargo, which produces neither injury nor ineonvenience to his employer, forms no defence to the payment of his wages..</p> <p>The- consignees- selected by a ship master or supercargo in a foreign port, according to the usual course of trade, and in good faith, are so far the agents of the-owners of the ship and cargo, that- upon the death of the captain or supercargo,, his representatives are not responsible for the consequences of the neglect' or misconduct of such consignees, in the execution of their agency after-his death not imputable to instructions given in the life of such- captain or supercargo.</p> <p>Ashipment- of merchandize, whose exportation is prohibited, made by a supercargo for aceonnt of. his principal, is at his own risk, and if seized and condemned at the place of exportation, the supercargo must hear the loss.</p> <p>The acceptance-by a ship owner of the letters and invoices sent to him by the consignees of his ship in a foreign port, is not such aratification of the acts of those agents, as would throw a loss arising from the seizure of merchandize exported against the laws of tho- port of shipment by them, for his-account, upon such ship owner.</p>

<p>The owner of a ship after she was laden at Baltimore, on the 14th May, 1810, agreed with the shippers of the cargo, in writing, that their goods were “to be landed in a permitted port on the continent of Europe, (meaning that they were not to be landed at the Island of Sylt) before the freight should be earned, but should the whole of the continent be shut, the freight, with an addition as arbitrators might determine, would be earned, should, the property be landed in England, agreeably to the custom of the country.” On the 25th April, 1810, a charter party had been entered into for the same ship, by which the owner covenanted to proceed with his ship from Baltimore, north about, for the Island of Sylt, thence to Haniburg or Bremen, if open to American ships, if not, the cargo to bo landed at Sylt if permitted, and in ease of refusal there, thence to such permitted port in the North Sea or Baltic, as the master and supercargo might direct; and should the Bailie bo closed against the admission of American vessels, then to such other port as the master and supercargo might again direct. The freight was to be paid agreeably to the bills of lading, provided the cargo was discharged at a port in the North Sea; but if delivered at any port in the Baltic, an advance in the freight was covenanted for; and should the Baltic be shut, a further advance in the freight to be settled by arbitration. On the. 8th May, 1810, a bill of lading was also signed for the plaintiff’s goods, which stated the ship to be bound from Baltimore for Sylt, and a permitted port in the North Sea or Baltic, the goods to be delivered at the aforesaid permitted port, unto P of Hamburg, who was not the supercargo of the ship. In an action where the plaintiff claimed under these contracts, he offered testimony to establish that certain ports in Europe not on the North Sea or Baltic, were open to American vessels, but the court held that looking to the historical facts and occurrences of the time, it was manifest that the voyage was undertaken, and the charter party, bill of lading, and agreement entered into, with a view to the then political state of affairs in Europe, and should be construed with a view thereto—, that the permitted port on the continent of Europe, in which, the goods were by the agreement to be landed, before freight could be earned, was intended to be a permitted port in the North Sea or the Baltic; and also that all the said instruments must be construed in connexion with each other, .and the general terms in the agreement of the 14th May, x-estricted to the North Sea and Baltic; and therefore rejected the testimony offered,as inadmissible and irrelevant.</p> <p>Whether ship owners are entitled in equity and good conscience, to retain money received on account of freight, is clearly a question not to be left to the jury; but proper only to be decided by the court, under the circumstances of each case.</p> <p>So where in an action of assumpsit brought by the owner of merchandize shipped in the defendant’s vessel, to recover a sum which the defendant hud received and retained for freight, it appeared that the shipment was made under tile charter party, bill of lading, and agreement above referred to, and that the master was furnished with instructions from the plaintiff, as follows, “on account of the unsettled state of affairs on the continent of Europe., 1 have thought proper to request my friends Messrs. P. Sf Co. of Hamburg, in the event of the cargo of the ship being denied entry at their port, to consult with you on the further destination of the ship, and the disposal of my interest on board. In case they have no friend at the port she may proceed for, you will please take charge of it, and advise with them what is host to be done for my interest. On your arrival off Sylt, should the situation of affairs be such as to prevent you from communicating with Messrs. P.S, Co., in that case you will have to proceed with the cargo where you judge it will be most advantageous for all concerned, when I shall consider my part as entirely under your charge, &o.” The. ship sailed on her voyage,, was captured before her arrival off Sylt, taken into a port in Norway, but ultimately released. The master, after the restoration of his ship and cargo, without consulting with the consignees about the further destination of the ship, or disposition of the plaintiff’s properly, although he had the means of communicating with them, proceeded with his ship to England, there delivered his cargo, and received (from the agents who sold the cargo,) as freight, the sum claimed in this action. IIki.d, he was not entitled to retain it.</p> <p>Where by the municipal regulations of certain ports, a certificate of origin W'as necessary to the admission of certain merchandize thorn, a shipmaster having received such goods on board his ship, and signed a bill of lading for their delivery at one of such ports, cannot in the absence of evidence to shew it was the duty of the shipper to furnish such a certificate, set up the fact of that document not being on board his ship, as an excuse for not entering the port at which he had agreed to land the property entrusted to him; nor as a justification for his delivering it at another port, anti thereby earn freight.</p>

<p>The statute 3d <md 4th Anne, Ch. 9, declares that promissory notes shall he assignable or endorsable over in the same manner as inland bills of exchange are, or may he, according to the custom of merchants; and power is by the same statute given to endorsees, to maintain actions against the drawers, or prior endorsers of such notes, in the same manner as in cases of inland bills of exchange.</p> <p>By this statute, bills of exchange and promissory notes are placed on the same footing, and the law applicable to bills, is in general applicable to promissory notes.</p> <p>When a bill of exchange is endorsed in full, all the legal interest is transferred to the endorsee, and having the legal interest, he alone is qualified to maintain an action on such hill. He cannot use the name of the payee, because the payee having transferred his interest, can have no competency to maintain an action.</p> <p>So where it appeared that the note of the defendant, payable to B or order, had been endorsed as follows, “I assign the within for value received, to L;” signed B, but which endorsement was erased just before the jury was sworn; it was held that an action in the name of B, originally instituted for the use of L, could not he maintained, upon tile note, as there was no evidence from which the jury could infer that the payee and plaintiff was the holder of the note; neither could an action be maintained on the money counts, although there was proof of an express promise to pay the sum demanded in such suit, as that must be considered as enuring to the benefit of him who had a right to the note.</p> <p>If anote duly endorsed in full, should, in the regular course of commercial dealing, come back to the hands of a prior endorser, or of the payee, it. would he competent, for such person as the holder, to strike out the endorsement, and sue in his own name.</p> <p>English decisions made since the revolution, have no authoritative force here.</p> <p>In an action against the maker of a note, payable at the house of the payee and plaintiff, on a certain number of days after date, no demand of payment is necessary to he averred or proved.</p>

Appeals from sundry orders of the Court of Chancery. The bill'of complaint in this case, was filed on die 12th of May, 1826, in Baltimore County Court, sitting as a court of equity, by the complainants, (now appellees,) against, the defendant, (the appellant,) and afterwards, under the act of 1824, eh. 196, at the instance of the defendant, was transmitted to the Court of Chancery.

) Tbe original bill, filed on the 21st of February, 1822, stated that Dudley Poor, (one of the defendants,) being indebted to tbe complainant in the sum of $600, and desirous of securing the payment thereof, and the interest, in consideration thereof the said Poor, and Deborah his wife, (another of the defendants,) on the 28th of March, 1820, executed to the complainant a deed of mortgage, by which they conveyed to the complainant a lot of ground in the city of Baltimore, on…

Kiersted vs. The State, use of Costello. Appeal from Baltimore County Court.

Ejectment for a tract of land called Augustus’s Discovery Resurveyed. The defendants (now appellees), took defence on warrant, and plots were returned. Not guilty was pleaded and issue joined. The plaintiff made claim and pretension for all that tract or parcel of land, called Augustus’s Discovery Resurveyed, as located on the plots.

This was an action of trover, brought by the appellee (the plaintiff below) to recover the value of two hundred bushels of rye. The general issue was pleaded.

This was an appeal from Chancery. The hill was filed by James Neale, administrator de bonis non of Anthony Hook, and claimed payment for… Held: that a person who had, after the death of the intestate, obtained possession of his personal property, could not have it quieted or matured into a right, by the lapse, of any length of time, even as much as forty years uninterrupted' possession, before the granting of letters of administration; because, the statute of limitations…

The bill of complaint, in this case, was filed on the 9th of November, 1824, by William Taggart, administrator of Henry Taggart, (now appellee) against John D. Danels, (the appellant) and John C. King.

The bill, which was filed on the 29th of September, 1823, by the appellees against .the appellants, and Hannah Kilty Chase, stated that John Eager Howard, by his deed of conveyance, bearing date the 28th February, 1793, did convey to William. Paca, a certain lot of ground, situate in the city of Baltimore, upon the terms and conditions of the exhibit A, hereinafter set forth.

In this case a bill was filed on the 18th of December, 1822, by the appellants, against William Stansbuvy, for the sale of certain lots-of ground in the city of Baltimore, mortgaged by him to them, on the 27th of July, 1822, for the purpose of securing the payment of all and every sum or sums of money then owing, or which might thereafter be due or owing from Stansbury to the Union Bank, upon any promissory note or notes negotiated, or to be negotiated at the said bank,…

Appear from Harford County Court. This was an action on the case for obstructing a way, whereto the plaintiff below (now appellee) claimed right by virtue of an instrument of writing under the hand and seal of one Joshua S. Bond.

The bill filed on the 9th of August, 1824, by the complainants, (now appellees,) stated, that H. G, S. Key, one. of the defendants, was indebted to the complainant Rebecca Reilly before her marriage in the sum of $266.65; that the defendant, Charles C. Egerton, was in the habit of supplying her with such articles as she required (he, the said Egerton, being a merchant, residing in said county,) and that she was likewise in the habit, occasionally, of making small purchases…

This was a, petition for freedom filed in Anne Arundel County Court, on the 10th of March, 1828. The following statement of facts was submitted for the opinion of the Court.

On the Í4íh of June, 1823, the appellants filed their bill against the appellee, upon which an injunction and subpoena issued, and were served to September term, 1823, when the defendant not appearing, an attachment issued against him, and he was returned attached to December term, 1823. The attachment was renewed, and the defendant was returned attached to March term, 1824. On the 30th of March, 1824, an order was passed to take the hill pro confesso, fyc.

This was. an action of assumpsit, brought on the 19th of February, 1825.

This was an action of assumpsit, brought by the appellant, the plaintiff below, against the appellee. The declaration contained five ■counts, one for matters properly chargeable in account,—for money laid out and expended,—for money lent and advanced,. —for money had and received,—and on an insimul computassent. The defendant pleaded non assumpsit and issue was-joined.

This was an action of assumpsit, brought by the appellant against the appellee,, who was guardian of E. Egerton. The declaration contained a count, for matters and articles properly chargeable in account, the money counts, and a count on an insimul computassent. Plea non assumpsit and issue,.

This was an action of debt, brought by the appellant as executrix of Robert Halkerstone against the appellee, on a bond to the said Robert, in the penalty of £200, dated on the 10th of June, 1812, with the following condition: “The conditionoft.be above obligation is such, that if the above bound Samuel Hawkins, his heirs, executors, administrators or assigns, shall exhibit all the papers concerning and touching the estate of the late William, Halkerstone, deceased, to…

This was anr action of covenant, brought on the 2d of February, 1824, by the appellant, (the plaintiff in the County Court) against the appellees, the defendants in that court, on the following agreement, to wit: C. Dorsey having sold to William C. Dyer, tracts or parcels of land, sold by Henry Jlnderson to Campbell and Ritchie, and by their agent, Henry H. Chapman, sold to C. Dorsey, and for which lands the said Dorsey has executed a deed to the said William C. Dyer.

<p>A return by the Sheriff to a wi'it oí fieri facias, that lie had levied upon 11 part of a tract of land called B, supposed to contain, &c.” is not sufficient, ■would be quashed on motion, and unavailable in ejectment to prove title in a purchaser.</p> <p>A purchaser at a sheriff’s sale is entitled to the benefit of that officer’s return, both to the fieri facias, and venditioni exponas; and when the description of the subject levied on, according to the schedule returned under the first writ, is defective, it may be amended and rendered certain, by the return of the sheriff’s proceedings, under the second writ.</p> <p>So a levy under a fieri facias which is defective in the description of the property levied on, may bo amended by the sheriff’s return of the property sold under such writ, the, return of the sale describing the property with sufficient certainty.</p> <p>A purchaser under a judicial sale has aright to resort to the whole judicial proceedings, under which his title accrued, to ascertain i1¡.</p> <p>The right of a party to obtain a writ of habere facias possessionem, under the act of 1825, ch. 103,-does not'relate to the time the execution was issued, but to the time when the lands were sold.</p>

This was an action of debt on a Trustee’s bond, under a decree of the Court of Chancery, brought by the appellant on the 18th of February, 1820, pleas general and special performance.

This was an action of Assumpsit, brought by the appellant as trustee of Mary Meginnis, to recover the sum of $150, being the first semi-annual instalment of an annuity directed by an act of the General Assembly of Maryland, to be paid the said appellant by the appellee, for the use of the said Mary.

This was an action of replevin brought by the appellee (the plaintiff in the court below) against the appellants (the defendants in that court.)

This was an action of Assumpsit, originally brought in Baltimore County Court, hut on suggestion, &c. of the defendant (the intestate of the appellee) was removed to Harford County: Court. After the cause was so removed, the death of the original defendant was suggested, and the present appellee was made defendant, as his administrator de bonis non.

Assumpsit to recover a sum of money claimed for taxes imposed by the appellees, (the plaintiffs in the court below) on the appellant, (the defendant in that court.) It was agreed, that the acts of Assembly and ordinances referred to in the bill of exceptions, might be read from the printed copies, without being inserted in the record.

<p>To obtain a partition of land in equity, the complainant must allege and establish a seisin in himself.</p> <p>To a bill praying for a partition of .lands, alleging a seisin in the complainant with others, the defendant in his answer did not respond to the averment of seisin: the cause being set down for hearing upon bill and answer, the silence of the defendant is no admission of that fact, and the complainant having taken no proof of it, his bill was dismissed.</p> <p>A respondent submitting to answer must answer fully, but if .the answer be defective and insufficient to meet the allegations and interrogatories of the bill, the complainant desiring a fuller response must except to the answer; if he do not, he cannot rely upon the silence of the respondent, in relation to any material allegation, but must prove it.</p> <p>Where G by his last will devised certain tracts of .land to his three sons in fee, and also devised to his daughters, “the right, privilege and liberty of residing and living in the houses with, and using and cultivating with themselves and their negroes, and of keeping their negroes, stock, and all their other property thereon, and with them, in common with my sons, all my lands during the term that my said daughters should remain single and unmarried,” it was held that the daughters did not take'an estate for life, or any other less estate, in common with their brothers, which was susceptible of partition; and that the devise to them was a mere charge for their benefit upon the lands of the testator, and incapable of alienation to a stranger. perelanp chancellor.</p>

The proceedings which took place on the petition which was filed in this case by the appellee, Frederick Sumwalt, on the 12th of April, 1826, are sufficiently set forth in the opinion delivered by this court. Bland, Chancellor, (March term, 182'7.) This matter standing ready for hearing, and the solicitors of the parties having been heard, the proceedings were read and considered.